The Supreme Court has granted a shop workers’ union permission to proceed with its ‘fire and rehire’ case against Tesco.
The Union of Shop Distributive and Allied Workers (Usdaw) can now take its legal challenge against the supermarket’s plans to dismiss employees and rehire them on less favourable contracts to the highest court in the UK, despite the Court of Appeal ruling that Tesco could proceed with the plans earlier this year.
The case centres around employees at Tesco’s Daventry and Litchfield distribution centres, who were set to have their contracts of employment terminated by the company, only to be re-engaged on contracts that did not include a historical “retained pay” benefit.
In February the High Court ruled in the workers’ favour and stated that the benefit was “guaranteed for life”.
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However an appeal by Tesco saw the Court of Appeal overturn this in July. It found that the fact the collective agreements contained references about retained pay being “permanent” only meant it was guaranteed for the life of a particular contract of employment, and that the language used did not suggest it would last beyond that.
An injunction preventing Tesco from issuing the notices of termination was removed by the Court of Appeal.
Upon receiving permission to take its appeal to the Supreme Court, Usdaw national office Joanne McGuinness said: “It has always been clear to us what we agreed with Tesco in respect of our members in receipt of retained pay. That is that they would have a right to this payment for as long as they remained employed by Tesco in their current role. The agreement was reached at a time when the organisation needed these individuals to remain in post as it could not have been operationally effective if they had chosen to leave.
“We were very disappointed by the outcome at the Court of Appeal but we made clear it would not end there without some recompense for our members and we would exhaust every avenue to protect our members’ terms and conditions of employment. The decision to grant permission is a further step doing everything we can to continue this fight.”
Neil Todd, a trade union specialist at Thompsons Solicitors, which is representing Usdaw, said: “Tesco faces a fight as Usdaw is resolute that the workers concerned were given clear commitments by Tesco that retained pay was to be a permanent feature of their income.”
A spokesperson for Tesco said: “A very small number of colleagues in our UK distribution network receive a supplement to their pay, which was offered a number of years ago as an incentive to retain colleagues. The vast majority of our distribution colleagues today do not receive this top-up, and so we took the decision to phase it out. We will continue to work constructively with the small number of colleagues affected to agree a way forward.”
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A date for the hearing is yet to be set.
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